Queensland College of Teachers v JNJ
[2017] QCAT 125
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- Queensland College of Teachers v JNJ[2017] QCAT 125
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Queensland College of Teachers v JNJ[2017] QCAT 125
Queensland College of Teachers v JNJ[2017] QCAT 125
CITATION: | Queensland College of Teachers v JNJ [2017] QCAT 125 |
PARTIES: | Queensland College of Teachers (Applicant) v JNJ (Respondent) |
APPLICATION NUMBER: | OCR052-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member O'Callaghan |
DELIVERED ON: | 20 April 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – suspension of teacher – where Queensland College of Teachers suspended the teacher’s registration on the basis of its belief that the teacher poses an unacceptable risk of harm to children – whether the teacher does not pose an unacceptable risk of harm – whether suspension should continue Education (Queensland College of Teachers) Act 2005 (Qld), s 49, s 50(5), s 53, s 54(1)(b), s 55(6) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Briginshaw v Briginshaw (1938) 60 CLR 336 M v M (1988) 166 CLR 69 Queensland College of Teachers v Teacher CXJ [2016] QCAT 511 Queensland College of Teachers v Teacher GXM [2016] QCAT 441 Queensland College of Teachers v LDW [2017] QCAT 048 |
APPEARANCES: |
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This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- [1]JNJ has been registered in Queensland as a teacher since 2004. On 20 January 2017 the Queensland College of Teachers (‘QCT’) suspended his registration pursuant to s 49 of Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’) on the basis that he posed an unacceptable risk of harm to children.
- [2]In accordance with s 50(5) of the Act, the QCT has referred the continuation of the suspension to QCAT for review and seeks orders that the suspension continue.
- [3]The Tribunal must decide to continue the suspension unless it is satisfied that JNJ does not pose an unacceptable risk of harm to children.[1]
- [4]As required by the Act, directions were made by the Tribunal inviting submissions from JNJ as to why he does not pose an unacceptable risk of harm to children. JNJ has communicated through his legal representatives that he declines to provide submissions, and in so declining makes no admissions.
The Legislative Framework
- [5]Once the QCT has formed a reasonable belief that a teacher poses an unacceptable risk of harm to children and suspended the teacher’s registration, the teacher then bears the onus of proof to satisfy the Tribunal that they do not pose an unacceptable risk of harm to children.[2]
- [6]The standard of proof is the civil standard of balance of probabilities in line with what is commonly referred to as the ‘Briginshaw standard’.[3] Accordingly, based on the serious consequences of findings, a teacher would not be successful in discharging the onus on the basis of inexact or flimsy evidence.[4]
What is meant by an unacceptable risk of harm to children?
- [7]The Act does not define “unacceptable risk of harm”. In Queensland College of Teachers v LDW I said:
I accept the submission of the QCT that the ordinary meaning of the term should be preferred having regard to the context of the term in the Act and the purpose of the Act.
The QCT refers the Tribunal to the High Court case of M v M, which considered the degree of risk of sexual abuse which would lead to denial of parental access. The Court in that case formulated the issue as ensuring the protection of a child from ‘unacceptable risk of abuse’. The QCT submits, and I accept, that this formulation directs the Tribunal to an assessment of the ‘chances’ of the risk occurring and the magnitude of potential harm if it did occur, and requires a balancing exercise of advantages and detriments.[5] [footnotes omitted]
- [8]The question is whether there is an identifiable risk of harm and whether such risk is “unacceptable”.
- [9]Harm is defined in the QCT Act as:
7 Meaning of harm
- (1)Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
(2) It is immaterial how the harm is caused.
(3) Harm can be caused by—
(a) physical, psychological or emotional abuse or neglect; or
(b) sexual abuse or exploitation.
(4) Harm can be caused by—
(a) a single act, omission or circumstance; or
(b) a series or combination of acts, omissions or circumstances.
- [10]This definition would suggest that the identified risk of harm must be significant, rather than minor, and the degree of risk of the harm occurring must be unacceptable. The mere possibility of harm would arguably not be ‘unacceptable’.
- [11]The determination of any identified risk as unacceptable involves achieving a balance between the protection of students from harm by the conduct of the teacher on the one hand and the potential harm to the teacher of having an unjustified suspension of their registration on the other.
- [12]This determination must be made in the context of the purpose of s 49, which is to ensure that children are protected by removing the risk that a teacher may harm, or be in a position to harm, children.
- [13]It is a protective provision which prefers the protection of children and the child’s interests over the interests of the registered teacher.
The grounds of JNJ’s suspension.
- [14]The notice of suspension set out the QCT’s reasons for forming the view that JNJ posed an unacceptable risk of harm to children as follows:
- JNJ was registered as a teacher from 14 October 2003;
- He was employed as a teacher at the relevant school between 2014 and January 2017;
- Between 2014 and 2015 the relevant student was a student at the school in years 11 and 12 respectively;
- The relevant student was at this time best friends with JNJ’s daughter, also a student at the relevant school, who was in the same year levels;
- During 2014 and 2015 the relevant student regularly visited and stayed overnight at JNJ’s home with his daughter, allegedly confided in JNJ about her ‘unhappy home life’, and sought his advice and support;
- During 2014 and 2015 in his discussions with the relevant student whilst at his home JNJ held a position of trust and authority as a teacher and as a parent with responsibility for supervising another person’s child;
- In 2015 the relevant student graduated, and in 2016 relocated to attend university;
- On or around May 2016 JNJ commenced an inappropriate relationship (impliedly a romantic / sexual relationship) with the relevant student;
- The inappropriate relationship occurred without the knowledge of JNJ’s friends or family, and the relevant student lied to her family and friends about the relationship;
- The relevant student allegedly failed her first year of university and was not managing her responsibilities of living independently;
- JNJ, in a conversation with the Head of College of the relevant school when discussing the relationship and his conduct, stated that he “had done nothing wrong” and that he and the relevant student were “in love”.
- [15]The QCT filed the material on which the decision was based, namely:
- A section 76 notification from the relevant school.[6]
Does JNJ pose an unacceptable risk of harm?
- [16]JNJ has the onus of satisfying the Tribunal that he does not pose an unacceptable risk of harm. He has declined the opportunity to make any submission in response.
- [17]I am satisfied on the material currently provided that JNJ poses an unacceptable risk of harm to children. I therefore order the suspension of JNJ’s teachers registration continue.
- [18]I note that under s 55(6) of the Act, JNJ may apply within 28 days of the notice of this decision to QCAT for review of this decision. He may at that point provide any additional material which may support a submission that he does not pose an unacceptable risk of harm to children.
Non-publication order
- [19]JNJ has submitted that a non-publication order is appropriate, having regard to concerns of the negative impact to the mental health of JNJ, his two daughters, and potential harm to the relevant student, were JNJ to be identified. JNJ has filed a statement of a treating medical pracitioner.
- [20]The QCT does not oppose a non-publication order, to the extent that publication of JNJ’s identity may lead to the identification of the relevant student and JNJ’s daughters. The QCT reserves the right to make further submissions concerning non-publication at the conclusion of the disciplinary matter.
- [21]The QCT further submits that it is appropriate that the name of the relevant school and names of all student witnesses be included in a non-publication order.
- [22]I am satisfied that it would be contrary to the public interest for information to be published which would identify the relevant school and any students. There is a possibility that the publication of JNJ’s name would lead to the identification of the relevant children. I also accept the publication of information identifying JNJ may endanger the mental health of his daughters. This aspect of the non-publication order can be revisited in any subsequent disciplinary proceedings.
- [23]I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.
Footnotes
[1] The Act, s 53.
[2] Queensland College of Teachers v Teacher CXJ [2016] QCAT 511 [26]; Queensland College of Teachers v Teacher GXM [2016] QCAT 441.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336, at 361-362.
[4] QCT v Teacher CXJ [2016] QCAT 511, at para [27].
[5] Queensland College of Teachers v LDW [2017] QCAT 048, [10]-[11].
[6] Section 76 of the Act requires the employing authority for a prescribed school, if it investigates an allegation of harm caused or likely to be caused to a child because of the conduct of a relevant teacher, to give notice to the QCT as soon as practicable after the investigation starts. The notice must include, inter alia, the particulars of the allegation.